A guide to the UPC and the UP - Flipbook - Page 386
translation of the EEO certificate into the official language of the enforcing court of the Member
State. 32 The interests of the debtor are preserved at the enforcement stage by allowing a limited
right of refusal of the EEO short of review on the substance. 33 In contrast, there is no possibility
of opposing the enforceability of court settlements and authentic instruments certified as
EEOs. 34
Enforcement in Lugano Convention States
19-26 The Lugano Convention is relevant to recognition and enforcement of decisions and orders in
Iceland, Norway and Switzerland. The procedure will be governed by the law of the State in
which enforcement is sought 35 and the claimant (or person seeking to enforce the order) must
provide an address for service within the jurisdiction of the court applied to or appoint a
representative. 36 The application should be made to the enforcement authority providing: 37
– A copy of the decision which satisfies the conditions necessary to establish its
authenticity; and
– A certificate provided by the Court using the form in Annex V to the Lugano Convention.
19-27 A translation of these documents may also be required by the enforcement authority. 38
Reference should be made to arts 32 to 56 Lugano Convention for further details of
the procedure.
Enforcement in Other Countries
19-28 Since an injunction against further infringement issued by the Court can only have effect in
Contracting Member States, 39 enforcement of an order outside the EU will be limited to those
parts of the decision that contain an obligation to pay a sum of money, which can either be
damages or penalties. This would only appear to be necessary if the defendant has no known
assets in the EU from which to recover the award. When the Court’s decision (being equivalent
to a decision on a court in a Contracting Member State) needs to be applied outside the EU,
the rules for enforcement and recognition of the country where enforcement is sought must
be relied upon. The recovery of money judgments in jurisdictions outside the EU could be
facilitated by bilateral treaties between countries that organise the recognition and
enforcement of judgments without the need for starting entirely fresh proceedings.
Unfortunately, no treaties are known that were concluded with Contracting Member States
and whose wording is broad enough so as to presume that they encompass the Court without
further amendment. It will therefore need to be examined on a case by case basis.
32
33
34
35
36
37
38
39
art.20 EEO Regulation.
art.21 EEO Regulation.
arts 24 and 25 EEO Regulation.
art.40(1) Lugano Convention.
art.40(2) Lugano Convention.
arts 53(1) and (2) Lugano Convention.
art.55(2) Lugano Convention.
Although a claimant, on the basis of the Court’s decision, might seek to keep goods out of the EU through making an
application for action to the Customs Authorities under art.5(1) European Parliament and Council Regulation (EU) No.
608/2013 concerning customs enforcement of intellectual property rights (OJ L 181, 29.6.2013, p.15).
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 376
